Copyright Regarding Product Placement?

[Guest]

Hey. I know this may seem like a trivial thing, but...what's the stance on mentioning copyrighted things in a visual novel? Say, for example, I wanted to have someone who really likes the smell of Lysol. Would I get in trouble for mentioning Lysol, seeing how I don't own the product and I didn't get permission for mentioning it? It would be easy to change Lysol into Rysol or something...

I guess this question counts for movies and regular stuff, too. So...how should I deal with product placement stuff?

[Jake]

Hey. I know this may seem like a trivial thing, but...what's the stance on mentioning copyrighted things in a visual novel? Say, for example, I wanted to have someone who really likes the smell of Lysol. Would I get in trouble for mentioning Lysol, seeing how I don't own the product and I didn't get permission for mentioning it?

Usual disclaimer - I'm not an intellectual property lawyer so all this is just the way I think it works - but I think you'll find that this is a trademark issue, not a copyright issue. I also don't keep up nearly so much on trademarks as copyrights...

Anyway. The name 'Lysol' isn't a copyrighted work in itself, it's a trademark that a product is sold under. Trademark law is... pretty weird, and pretty demanding on the trademark holder.

On one hand, I believe it's OK to use a trademark when you're not diluting the brand, kind of a fair-use type provision. On the other hand, 'diluting the brand' is as broad a term as 'damaging the market' is for fair use of copyrights... if you even allude to the idea that Lysol smells less than absolutely perfect, for instance, that probably counts.

The main thing with trademarks is that unlike copyrights, it's required for a trademark holder to actively defend that trademark or they lose it. So if someone mentions Coca-Cola in some indy project, and the Coca-Cola corporation notices and ignores it, then they lose the trademark and anyone can start using 'Coca-Cola' for anything. Which they obviously want to avoid, so you'll find trademarks are more aggressively defended than copyrights, even. If they notice the infringement, they literally cannot afford to not sue you.



So in general, it's probably safest to just steer clear of trademarked names entirely, just in case. This is why you'll often see 'Soni' televisions in anime, and why doujin fan-work authors will often asterisk out bits of the names of the original thing they're basing their stuff on.

[LateWhiteRabbit]

I'll make the disclaimer as well that I am not a copyright lawyer, so take everything I say with a grain of salt.

As mentioned, there is such a thing as 'fair-use' of copyrights and trademarks. As an art student at a professional industry college, we actually discuss this topic quite a bit. In general, there should be no problem as long as the product is ancillary to everything else going on around it.

This means that if you were shooting a movie or tv show, or taking a picture, it would be fine to show a character taking a Coca-Cola out of the fridge and drinking it as he had a conversation with someone else. You wouldn't want to zoom all the way in on the soda or draw attention to it - it would just be there. It is the same reason that you don't have to blur out fast-food logos or business signs when you take a picture of a street. It is fair-use and it is naturally expected to be a part of the scene. Again, it would not be cool to take a picture with nothing else in it other than the McDonald's logo.

For instance, Andy Warhol's famous Campbell Soup can artworks would not fly today. They would be seen as a pretty blatant violation of copyright, since there is nothing in the works except Campbell soup cans.

As for using Lysol in your VN, it all depends on how you use it. If a character just sprays it occasionally or mentions it in passing, it should be fine. If however, as it sounds like you are doing, you are making Lysol important to your character, i.e. a specific and recurring quirk, then I think you may be toeing the line. Lysol is no ancillary in your VN, it is occupying a prominent space. However, I doubt Lysol would ever know. So it is your call.

I don't think most brands defend their copy-rights as vigorously as has been stated either. No judge would allow a major corporation to lose its trademark because a student made a film about it and it wasn't challenged. Also, in the southern United States, the term Coke, as in Coca-Cola, is used for every soda. I.e. "What kind of Coke do you want?" "I'll take a Dr. Pepper." Coca-Cola certainly is going around sueing southern tv shows or movies for people saying 'Coke' and drinking a Pepsi. Its fair-use.

Just my two cents.

[Jake]

I don't think most brands defend their copy-rights as vigorously as has been stated either.

Trademarks, not copyrights. Seriously - you don't lose a copyright for not protecting it; you do seriously risk losing the ability to enforce a trademark. Specifically, the entire point of a trademark is to uniquely distinguish your brand - if you allow others to use it without acting as agents of your brand, then it can be (and has, successfully, been) argued that your mark no longer uniquely identifies your brand, or your good business name, and thus the protections a trademark affords are irrelevant to you. You don't literally have it taken away, but the less you enforce it the less likely a judge is to award in your favour when someone threatens it in court. Probably the most infamous example is 'Aspirin'.

No judge would allow a major corporation to lose its trademark because a student made a film about it and it wasn't challenged. Also, in the southern United States, the term Coke, as in Coca-Cola, is used for every soda. I.e. "What kind of Coke do you want?" "I'll take a Dr. Pepper." Coca-Cola certainly is going around sueing southern tv shows or movies for people saying 'Coke' and drinking a Pepsi. Its fair-use.

Except that to my knowledge, nobody sells colas under the name 'Coke', because if they did, the Coca-Cola corporation would sue the living daylights out of them. Regardless of whether or not people use the term to refer to colas in general, people still understand that the particular name 'Coke' technically refers to the particular brand Coca-Cola, which is the point of the trademark. Of course, even if that wasn't the case the Coca-Cola corporation would still sue the hell out of you, and it doesn't matter whether they have a legal standing to do so because they definitely have a lot more money than you, and they can afford to drag the court case out long enough for you to bankrupt and accept whatever corrupt settlement they choose to let you off with.

'Cola' is fine, because that comes from 'kola nut', the extract of which is [theoretically] used to make the drink; all generic coke-like products I've ever seen have been sold under the name 'Cola' instead of 'Coke'. You remember how Adobe really want people to use the verb 'photo-chop' instead of 'photoshop', as in "I photo-chopped my sister's head onto a porn star and stuck it to the fridge"? Again, they're worried that their trademark is becoming genericised and if it does, other people will be able to sell software with that name. Wikipedia-that-always-lies has a more thorough treatment here, which gels with my understanding.



Now - yes, if you don't make a point of the trademark, you're probably fine. And it's highly unlikely that a corporation is going to lose its ability to enforce its trademark because some kid on the Internet made a game which mentioned it. However, if a thousand people use their trademark all over the place, it's a lot less clear-cut. If a million do, it's probably already generic enough to lose all protection. So the owner of a trademark can't give too much leeway. Because of the threat of genericisation corporations are more typically touchy about trademarks than copyrights, and more likely to threaten and/or carry out legal action regardless of whether or not you're really threatening their mark... and corporations have deep pockets and many, many lawyers. This never ends well for the individual, so on the whole, it's safer to not make any more use of other people's trademarks than you have to.

[LateWhiteRabbit]

Trademarks, not copyrights. Seriously - you don't lose a copyright for not protecting it; you do seriously risk losing the ability to enforce a trademark. Specifically, the entire point of a trademark is to uniquely distinguish your brand - if you allow others to use it without acting as agents of your brand, then it can be (and has, successfully, been) argued that your mark no longer uniquely identifies your brand, or your good business name, and thus the protections a trademark affords are irrelevant to you. You don't literally have it taken away, but the less you enforce it the less likely a judge is to award in your favour when someone threatens it in court. Probably the most infamous example is 'Aspirin'.

You're right of course. But again, it all depends on how you use their brand or trademark. I know many companies have let it slide because the product was presented in a good or glorified light, basically amounting to free advertising for the product involved. Of course, like you say, you should never depend on the kind (or logical) nature of corporate lawyers.

Except that to my knowledge, nobody sells colas under the name 'Coke', because if they did, the Coca-Cola corporation would sue the living daylights out of them. Regardless of whether or not people use the term to refer to colas in general, people still understand that the particular name 'Coke' technically refers to the particular brand Coca-Cola, which is the point of the trademark. Of course, even if that wasn't the case the Coca-Cola corporation would still sue the hell out of you, and it doesn't matter whether they have a legal standing to do so because they definitely have a lot more money than you, and they can afford to drag the court case out long enough for you to bankrupt and accept whatever corrupt settlement they choose to let you off with.

True, no one sells another product labeled 'Coke', but the term is as you mention later in your post, generalized in use in the American south. Literally everything that others would call 'pop' or 'soda' or 'cola' is referred to in the south as 'Coke'. Coca-Cola started in Atlanta, Georgia, and was very dominant for quite some time, which I believed caused the expression. I think Coca-Cola probably considers it something of a coup that any soda product that attempts to rival them in the south is called 'Coke', marking the rival products almost by default as knock-offs. If you ever get the chance, watch a Southerner go up north in the United States or somewhere else, and watch them get upset when they tell a waiter they want a Coke and aren't asked what kind they want. It is that ubiquitous in the South.

But yeah, like you say, don't mess with a corporation. You'll always lose.

You remember how Adobe really want people to use the verb 'photo-chop' instead of 'photoshop', as in "I photo-chopped my sister's head onto a porn star and stuck it to the fridge"? Again, they're worried that their trademark is becoming genericised and if it does, other people will be able to sell software with that name.

Ha! Really? I must have missed that one. They've already kind of lost that battle haven't they? Like I said, I work in the art industry, and my colleagues and I manipulate images on the computer all the time, and no matter what program we use, we are 'photoshopping' the image. Sorry, Adobe. Interesting stuff.

I wonder if we've scared our guest away from using trademarked products yet? Like you mentioned, regardless of legal rights or fair-use, it is always much easier to just come up with a fake product. 'Soni' and 'GameStation' for the win!

[Jake]

Ha! Really? I must have missed that one. They've already kind of lost that battle haven't they? Like I said, I work in the art industry, and my colleagues and I manipulate images on the computer all the time, and no matter what program we use, we are 'photoshopping' the image.

Yeah... I don't know quite how likely they are to lose a court case on it, but certainly they're unlikely to ever stop the colloquial usage!

'Soni' and 'GameStation' for the win!

Incidentally: "GameStation" is a chain of videogame shops in the UK.

[LateWhiteRabbit]

Incidentally: "GameStation" is a chain of videogame shops in the UK.

Noted. The lesson here is to check for trademarks and copyrights on fake trademarks and copyrights you make up!

[papillon]

It is that ubiquitous in the South.

This is the part where I get to point out that I'm Southern and NO ONE does that, EVER. (At least, in my personal experience, in the places in the South that I've lived.)

I've heard of it happening but always only third-hand. "I hear that somewhere they..." Maybe it's the Deep South, or the Rural South, or something... I'm sure it does exist in places, but if you visit the South at random and expect it, you may be surprised.

(I never lived in Atlanta, so I have no idea what's common usage around there...)

[Jake]

It is that ubiquitous in the South.

This is the part where I get to point out that I'm Southern and NO ONE does that, EVER.

This only reinforces my theory that Georgia is in a different dimension.

[Wintermoon]

I think it's important to consider how a trademark is used. If I use the word "Coca Cola" to refer to Pepsi, I am diluting the trademark. However, if I use the word "Coca Cola" to refer to actual Coca Cola, I am using the trademarked name the way the owner intended it to be used. Even saying "Coca Cola tastes like piss" is OK so long as I am referring to actual Coca Cola. (It may - arguably - be libel, but it isn't a trademark infringement.) Based on that, I don't think there would be any legal problem with having Coca Cola in a story, so long at it is actual Coca Cola.

[Scout]

I've heard of it happening but always only third-hand. "I hear that somewhere they..." Maybe it's the Deep South, or the Rural South, or something... I'm sure it does exist in places, but if you visit the South at random and expect it, you may be surprised.

You know, people constantly try to assign a regional pattern to soft drinks being called "pop", "soda", or "coke", and it never ever ever works. It's never simple and clearcut, and everyone is ALWAYS surprised to hear that someone in a state over has uses a different term entirely. There's just no method to the madness at all!

Meanwhile, just ignore Jake. He's quite silly.

[PyTom]

You know, people constantly try to assign a regional pattern to soft drinks being called "pop", "soda", or "coke", and it never ever ever works. It's never simple and clearcut, and everyone is ALWAYS surprised to hear that someone in a state over has uses a different term entirely. There's just no method to the madness at all!

There do seem to be regional differences, however. Check out:

http://popvssoda.com:2998/

While this doesn't mean that 100% of people in a given place use a particular term, it does look like there's a definite shift in terms regionally. I know that I grew up calling it "soda", but when I lived in Pittsburgh, it was always pop among the locals.

[Scout]

Oh, of course there is. What I meant was, there's no pattern to what regions will call it specifically. The bizarre shapes with loooooots of exceptions in the middle just go further to show.

[Samu-kun]

You know, people constantly try to assign a regional pattern to soft drinks being called "pop", "soda", or "coke", and it never ever ever works. It's never simple and clearcut, and everyone is ALWAYS surprised to hear that someone in a state over has uses a different term entirely. There's just no method to the madness at all!

There do seem to be regional differences, however. Check out:

http://popvssoda.com:2998/

While this doesn't mean that 100% of people in a given place use a particular term, it does look like there's a definite shift in terms regionally. I know that I grew up calling it "soda", but when I lived in Pittsburgh, it was always pop among the locals.

Why am I not surprised at all that 4chan made number 2 on the "other" responses... Not surprised at all...

[herenvardo]

(Note: this post is absolutely irrelevant to the original question, but it deserves being posted )
Conclusion: the next time you ask for one of these drinks, refer it as "kola-nut-based carbonated soft drink", in order to avoid confusion no matter where you are.
Actually, I think this would be more confusing than using the term "Coca Cola" to ask for a Pepsi, but should be (almost) the right way to do so. "Coke" or "Coca-Cola" should be used when you actually refer to the drink by The Coca Cola Company, but "Cola" should be used to refer to cola drinks generically. Going further, the terms "pop" and "soda" are neither right for this case, as they are supposed to refer to just any soft drink (this includes cola drinks, but also other soft drinks such as the common orange or lemon ones, like Fanta); and "soda" in Spanish would actually mean "soda water".

By the way, going back to something more relevant to the original topic, none of the uses I've made of trademarks in this post would be trademark infringement, as the terms are actually used to represent the corresponding product and to differentiate it from similar products by other producers.

At this point, I really believe this is my most useless post in any forum ever, so better I leave it here. Greetings.